Obstructed view

Failure to disclose disciplinary actions keeps the public in the dark about police misbehavior

Tuesday, Nov. 24 marks the first anniversary of a grand jury's failure to indict Officer Darren Wilson in the August 2014 shooting death of black teenager Michael Brown in Ferguson, Missouri.

When Wilson was cleared by the grand jury, riots broke out in Ferguson and elsewhere, and the Black Lives Matter movement was born, challenging cities across the country to examine policies pertaining to the use of excessive force by their police departments.

Sean Cayton

Ryan Brown continues to question what happened when he was pulled over on March 25.

Closer to home, the streets of Colorado Springs weren't marked by protests, but months later the Ferguson episode simmered in the minds of Springs Police Officer David Nelson, and brothers Benjamin and Ryan Brown.

Ryan Brown, who is black, referred to the shooting in Ferguson several times as Nelson, who is white, pulled him from his vehicle during a traffic stop on March 25 of this year. Later, Nelson told internal affairs investigators that during the stop he was thinking of "all the stuff going on with police officers these days [and] stuff that happened in Ferguson."

Since the Ferguson shooting, other questionable uses of force have made headlines. In Denver, significant monetary payouts resulting from police brutality led to a sweeping study, which was immediately released to the public when it was completed in May.

Still, it's far from clear how much race plays into officer actions in Colorado Springs, and it's impossible to know if officers use force on black people more often than whites. Why? Because the Colorado Springs Police Department shrouds investigations of its officers in secrecy, refusing to release most internal affairs files, although state law allows for them to be.

Records obtained by the Independent through open-records laws show that Brown isn't the only citizen Nelson has manhandled. Nelson has filed three reports of his physical contact with suspects in the past five years, not including the Brown case.

During another traffic stop in 2006, Nelson slammed Rocky Manning, white, onto the pavement and kneed him in the back, after which Manning spent time in jail and paid $11,000 in medical bills.

Manning's experience, reported here for the first time, falls outside the scope of Police Chief Pete Carey's review of excessive force, which is being conducted by unidentified "internal and external" law enforcement officials. ("Forcing the issue," Oct. 14, 2015.)

The panel's review is confined to "a random sampling of five years' worth of use-of-force complaints," the police department has said, with results expected in mid-2016. The five-year window correlates to records-retention practices that allow the department to destroy older records, except for those of substantiated officer wrongdoing, which must be kept for 10 years.

Officer Nelson noticed the Brown brothers driving about 20 to 25 mph in a 40-mph zone late on the morning of March 25 in the vicinity of Austin Bluffs Parkway and Barnes Road. Nelson described the area during an internal investigation (IA) interview as having "high crime" and "lots of drugs being sold," including heroin, methamphetamine and marijuana.

When Nelson made a U-turn to follow them, the Browns' car sped up and disappeared. Later that morning, about 11:17 a.m., he spotted the car on South Carefree Circle, moving slowly. Nelson says in his report that he stopped the car for a cracked windshield, loud muffler and obstruction of the license plate inside the windshield. But he also suspected the occupants to be involved "in some drug activity or some kind of criminal activity."

When Benjamin, who was driving, rolled down his window a mere three inches, Nelson thought the men were trying "to hide something." Ryan immediately told Benjamin not to comply with Nelson's requests for ID, leading Nelson to size up the stop as "going horrible," he told IA investigators.

He also told them he thought of Ferguson and that he concluded the brothers had "no respect for anybody." Although he said he tried to handle the call "with kid gloves," because he couldn't see their hands, he ordered the Browns out of the vehicle. Benjamin complied and was placed in a police cruiser. Nelson then went to the passenger side and pulled Ryan from the car. He placed him facedown on snow-covered grass, using a "wrist lock" to control him as he handcuffed him.

Officer Alison Detwiler, whom Nelson called as backup, told IA officers in an April 2 interview that Nelson contributed to the call's apparent rise in seriousness. "I think he over-escalates himself," said Detwiler, who has been on the force for 22 years. "I just think he gets way up there, and because he's way up there, it causes the situation to get way up there sometimes."

When Detwiler arrived, she didn't know what was going on, saying Nelson never told her. Nelson was on the driver side of the vehicle, so she went to the passenger side. "Dave escalated pretty quick, his voice and his responses escalated fairly quickly," she said.

So when Nelson pulled out his Taser, Detwiler assumed the brothers posed a threat, though she didn't know how or why.

"He didn't give me any kind of signal as to what was going on," she said, "so I just went to lethal [drew her weapon] and held the passenger and tried to do the best I could to focus on the passenger, asked him to keep his hands where I could see them."

Sean Cayton

A charge of obstructing an officer was filed against Brown but later dismissed.

Although Detwiler said Ryan Brown wasn't trying to fight them, "Dave's like 'Take him to the ground,' and the next thing I knew he was like — throws him in the grass right there beside us, and I just kind of went with it."

Detwiler went on to tell IA investigators that Nelson "ramps up" often, including on the day preceding her April 2 IA interview, when Nelson was heard on the radio "screaming for an officer ... yelling on the air."

"It's sort of a known thing at Stetson [Hills Police Substation] that he's super excitable and he escalates very rapidly," Detwiler added, noting that at times he "sort of spins out of control."

Ryan Brown filed a complaint of excessive force and contacted the ACLU of Colorado, which broadcast the case in news releases, labeling the incident "driving while black," and alleging that CSPD relies too heavily on force and weapons when dealing with people of color.

The CSPD, however, later ruled Nelson's actions "justified, legal and proper."

Silverstein says he'd like to know how the CSPD arrived at that conclusion. He questions whether the officers' desire to search the car (though they ultimately did not do so) and their pat-down of the brothers was lawful.

"Both officers seemed to assume they have the right to order the passenger out of the car to frisk for weapons," he says. "Neither of the officers or [IA] interviewers seem to be aware of the fact the courts consider that an intrusive action that requires officers to have articulable facts that amount to an objectively reasonable suspicion that the person to be frisked is armed and dangerous."

IA investigators, Silverstein notes, never quizzed Nelson about why he believed driving slowly justified stopping the Browns, frisking them and conducting a search.

"The Springs Police Department seems to have an unwritten policy that authorizes or justifies officers carrying out pat-down frisks whenever the officer wants to rather than when the Fourth Amendment standard is met," Silverstein adds.

Additionally, Silverstein is curious to know what, if anything, the CSPD has done to deal with Nelson's tendency to escalate situations, as reported by Detwiler, who said his excitability is well known among the ranks.

Benjamin Brown pleaded guilty to a charge stemming from the cracked windshield and lack of compulsory insurance; a charge of obstructing an officer filed against Ryan Brown was dismissed.

Another traffic stop involving Nelson ended more severely for Rocky Manning, who is white, nine years before the Brown brothers were stopped.

Manning was running errands prior to a church-sponsored father-daughter dance he was scheduled to attend with his then-10-year-old daughter that evening. He was stopped by Officer Barry Freeman, who told Manning he'd clocked him on radar going 67 in a 50 mph zone and planned to cite him.

Manning says he disputed the ticket and told Freeman he wouldn't sign it, claiming Freeman then said into his radio, "I have a resister."

Minutes later, Nelson pulled up in a police car, according to police reports. "Manning continued to argue, rant and rave, and told me that I was 'fucking crazy,'" Freeman's report says.

Manning says he never ranted or raved but that he did tell both Freeman and Nelson he wasn't going to sign the ticket.

Freeman said he and Nelson asked Manning to get out of the car, though Manning refutes that he was asked. Both officers' reports say Manning tried to pull the driver door shut when Nelson opened it, which triggered Nelson to get physical. "Officer Nelson placed the subject in a wrist lock and pulled him out of the vehicle and took him to the ground," Freeman said in his report. Nelson's report claims that after Manning grabbed the door "violently" and slammed it shut, Nelson "opened the door and put a goose neck hold on his [Manning's] right hand and wrist area."

The officers' reports also say they reacted to Manning's attempt to reach inside his coat for something, which Nelson notes "became an officer safety concern."

Manning disputes their version of events, saying he didn't try to pull the door shut and didn't reach into his coat pocket. Rather, he says, Nelson grabbed him by the throat without warning, pulled him from the vehicle and threw him to the ground, thrusting a knee into his back, causing him to feel "excruciating pain" in his back. Freeman held his head down under the exhaust pipe of his vehicle, which was still running, Manning says. He admits he called the two cops "motherfuckers," and the transcripts show he swore at them several times.

In an audio recording of the encounter made by Nelson, Nelson tells Manning, "I don't trust that you don't have any weapon with you .... Hands behind your back. Hands behind your back. I'm not risking anything with you. Not with that attitude."

Manning, handcuffed and on his stomach on the pavement, felt tingling and numbness in his legs, he says. Manning says he asked Nelson and Freeman, "Who in the hell do you think you are?" to which Nelson responded, "You better think about that the next time you decide to call a cop a motherfucker."

According to the audio recording, Nelson told Manning, "When we're trying to serve you a ticket and when you start calling us motherfuckers..." at which point Manning interrupts and asks, "That gives you the right to beat me up? ... Fuck you." Nelson then says, "Well, you're going to end up going to jail now, okay?"

When Manning asked for an ambulance, Nelson said, "You don't need an ambulance," according to the audio recording. Nelson eventually did call an ambulance, however, and Manning was treated at Memorial Hospital before being booked into jail. He bonded out in time to attend the father-daughter dance.

The medical bills Manning has provided to the Indy exceed $11,000, including X-rays, CAT scans and multiple treatments for low back and thoracic pain, pelvic asymmetry and dysfunction and hip musculature imbalance, among other things.

"I had to sleep sitting up for two months," Manning says.

Responding to Manning's complaint of excessive force, then-Police Chief Luis Velez (who is now police chief in Pueblo) wrote in a June 1, 2006, letter that "a complete and thorough investigation" concluded that "misconduct did not occur."

Manning also contends Nelson and other officers harassed his family for months afterward with bogus traffic stops, which prompted another complaint to the department. That, too, went nowhere. Then-Police Chief Richard Myers, now chief in Newport News, Virginia, told Manning in a Sept. 18, 2007, letter there was "no evidence" to support his claims.

Manning says he was found not guilty of speeding but was found guilty of interfering with a public official for which he was sentenced to two days in jail and fined $220. Manning says he searched unsuccessfully for an attorney to file a civil lawsuit on his behalf.

In retrospect, Manning remains indignant over how he was treated. "I have less faith [in police] than I used to," he says. "I try to think every guy out there has good intentions and hope they're not misled by a police force that tolerates rogue activities." Speaking of Nelson, he says, "He's just a bully. They shouldn't allow that to continue."

The CSPD's policy on traffic stops says, "The officer should respond calmly to confrontation. Professional law enforcement officers do not permit their own emotional responses to a violator to affect their judgment or actions."

It's worth noting the stop occurred two days after Springs Police Officer Jared Jensen was gunned down as he tried to apprehend a man wanted for attempted murder. In response to a request to interview someone about how such incidents might impact officers on the street and the bigger picture of Response to Aggression reports, the CSPD issued a statement from Carey, who described the reports as "a proactive measure to prevent misconduct and identify employees who might need assistance or training to more effectively and efficiently perform their duties."

Sean Cayton

No RTA form was filed in the Brown case, Carey says, "and the lack of a response to aggression form was addressed as part of the [Internal Affairs] investigation," which cleared Nelson. He didn't elaborate.

But he notes that officers respond to more than 800 calls for service a day, many of which pose the potential for "interaction" with criminals who are "determined not to be arrested."

"The reality of working in our profession," Carey says, "is that there are times when force must be used to affect [sic] an arrest or stop a person's actions." The chain of command reviews officers' use of force, he says, to assure "our officers are following policy and using the appropriate amount of force. We take corrective action as needed."

In an unusual move, on Oct. 23 the CSPD released three Response to Aggression forms filed by Nelson over the last five years. Springs officers are required to file such forms whenever they make physical contact with a suspect. How many Nelson filed before then isn't known, because the CSPD destroys RTA forms after five years in accordance with the state's recommended records-retention policy for municipalities, says police spokeswoman Lt. Catherine Buckley.

Nelson tased two suspects and thrust his knee into the back of another. Through an open-records request, the Independent obtained the police reports of the incidents (see "Hands-on policing").

According to payroll and performance evaluation records, Nelson has a spotless record at the CSPD. Supervisors consistently have rated him as "effective" and "exceptional," and he's never had an interruption in pay that would signal a possible disciplinary action. Nor do his training records contain anything that deviates from ordinary requirements.

When the Indy sought his IA history, however, the CSPD refused to release it, citing concerns that disclosure would impede future IA investigations by causing witnesses to fear harassment and intimidation if their names and statements were released; by creating a "chilling effect" on investigations; by undermining CSPD employee morale and performance, and by invading the privacy of officers named in IA files.

Nelson's IA file regarding the Brown brothers incident was released, Buckley says, because the widespread distribution of Ryan Brown's video and the ACLU's involvement made the matter of "overwhelming public interest." For that same reason — "the high level of public interest outweighing CSPD's interest in keeping the records confidential" — Nelson's RTA forms were released, she says.

But RTA forms filed by other officers won't be released, Buckley says, because disclosure would compromise supervisors' ability to conduct frank and meaningful reviews of use-of-force records, which are needed to maintain the department's mission to thoroughly investigate cases referred to Internal Affairs and impose discipline. Disclosure, she adds, also would infringe on the privacy rights of suspects, witnesses and officers named in the RTA reports.

Nor has the department released RTA forms and the IA file for Walker, citing pending civil litigation, although the video of the November 2013 takedown of Acker circulated around the world and drew millions of views.

But not all states are as protective of the men and women in blue and have adopted laws that require disclosure. According to an analysis reported by New York public radio station WNYC last month, 15 states allow some disclosure and 12 states mandate such records be released to the public. Among those are Utah, Arizona, Washington, North Dakota and Minnesota.

Colorado is one of 23 states and the District of Columbia that allow departments to shield officers' disciplinary histories, WNYC reported, although Colorado doesn't impose an absolute ban on disclosure. Rather, state law merely gives departments discretion to withhold IA files after a balancing test is conducted between the public interest and other factors.

The Center for Public Integrity's recent survey of states' open-records laws and practices rated Colorado at D+, assigning an F in the category of public access. "Daunting obstacles" include lack of a formal appeals process outside of the court system when records access is denied, the center reports. Particularly troublesome are police records, the center said, noting, "Law enforcement is an area of serious concern. While 'records of official action,' like arrest reports, are generally public, Colorado law authorizes local police to decide whether to release or withhold a wide range of other records (think footage from police body cameras), if they feel that releasing those records would be 'contrary to the public interest.'" That's the reason often cited by the Colorado Springs Police Department in denying access to internal affairs investigations.

Jeff Roberts, executive director of the Colorado Freedom of Information Coalition, who also serves on the National Freedom of Information board, points to a 2008 Colorado Supreme Court decision.

The court, he says via email, "determined that internal affairs files of law enforcement officers are criminal justice records that are available for inspection under the state's Criminal Justice Records Act. And if the documents contain private information that shouldn't be disclosed, the Court said redaction is 'an effective tool to provide the public with as much information as possible, while still protecting privacy interests when deemed necessary.'"

Roberts notes while the decision has been cited in lawsuits that occasionally resulted in IA files being disclosed, it might be time to amend the state law to be "more favorable" to release of IA reports.

"How law enforcement officers conduct themselves on the job is a matter of public interest," he notes.

As it is, the only window into the CSPD's use of force comes via the CSPD's release of aggregate data. As previously reported by the Indy ("Full force," July 15, 2015), citizens filed 209 excessive-force complaints against the CSPD from 2011 through April this year; only three were validated in a process that involves cops investigating cops. Officers, through the RTA forms, reported 929 use-of-force incidents involving 1,060 officers from 2012 to 2014.

Which makes the ACLU's Silverstein wonder whether keeping police records secret might work against cops. "Disclosure," he notes, "furthers the public interest, and if police are doing a good job, disclosure furthers the public interest in restoring confidence in the Police Department."